Author: Sunny Martin (Law Clerk)

Some recent Queensland decisions indicate that the bar to success for Claimants in workplace injury cases has been significantly lowered of late. In Tabcorp v Dank the Court of Appeal held an employer was negligent for failing to provide training and instruction on the correct method to lift a box of photocopy paper. In Brisbane City Council v Miles an employer was found liable for the injuries of a bus driver who was criminally assaulted whilst walking through a park with a cash box. However, Justice McMeekin’s recent decision in Stitz is a reminder that an employer’s duty is not absolute and that with a careful analysis of relevant factors and how they relate, “evidence” can become an employer’s best friend.

The Claim

The Plaintiff was employed by a labour hire company, working at the premises of the Australian Steel Company. He worked exclusively on a “Pratt Cutter”; a device used to cut steel rods which he alleged caused an injury to his lower back.

The Plaintiff alleged that every step of the system of work involved an unnecessary risk of injury. In particular:

(a) steel rods could become entangled causing him to have to lift and flick the rod to free it from the others;

(b) greater force than usual was required to manoeuvre the steel rods across the conveyor because several rollers were missing from it;

(c) there could be severe jolting when the rods missed the mouth of the cutter and struck the machine;

Alarm Bells

The Plaintiff provided numerous versions as to when he first suffered symptoms. Following the incident he continued to work for several days before reporting the injury to his supervisor. Most importantly the incident report and Notice of Claim for Damages did not raise “jolting” as a causative issue. Nor did the medical evidence consider “jolting” when assessing the Claimant’s injury.

Accordingly the Court was left to consider the remaining allegations regarding the rods becoming entangled and greater force being required to manoeuvre them due to the missing rollers. The Plaintiff’s evidence was that he was required to exert significant force when manoeuvring the steel rods which he described as being like pushing a rugby scrum.

In reply the Defendants provided evidence from long term co-workers that the above risk factors did not cause an appreciable increase in the forces required to manoeuvre the rollers.

The Findings

His Honour found that the system of work and plant was “plainly defective“. Further that if the defects had been remedied the risk of injury would have been reduced.

However his Honour also accepted the Defendant’s evidence that the forces that were applied to the Claimant’s back were modest and crucially “not likely to injure a man of normal fortitude“.

The Decision – Liability

His Honour held that “it has never been the law than an employer must remove all risk of injury“. Applying Kuhl v Zurich his Honour also determined that if the forces involved were “not likely to injure a man of normal fortitude” an employer is not required to remove the risk.

Given His Honour’s acceptance of the Defendant’s evidence regarding the modes nature of the duties the Claimant was subjected to the Plaintiff’s claim was unsuccessful.

Causation

The Plaintiff obtained a report from Dr Malcolm Wallace, orthopaedic surgeon who opined that he had sustained a significant injury “bending and pulling“. He also said his opinion was based upon there being “a specific work related injury to his lower back“.

The Defendants obtained a report from Dr Peter Boys, orthopaedic surgeon who recorded a similar history and opined that the Plaintiffs symptoms were caused by degeneration.

Given his Honour’s finding that the forces involved in the work were modest and that there was no specific incident he found that the opinions of both doctors were not based upon a “rational relationship with the facts proved“. Applying Makita v Sprowles therefore his Honour was unable to accept the evidence of either medical witness.

Accordingly if the Claimant had established liability he would have assesses the Claimant’s damages at $2,000.00.

Implications

1. Stitz will assist Respondents to defend claims where the allegations regarding the mechanism of injury made at trial are substantially different to the accounts provided in pre-court notices, incident reports and medical reports. In this regard the claims made at compulsory conference are often significantly different to those previously made.

2. It is not enough for a Plaintiff to establish that a system of work was defective. They must also establish that the system of work contributed to the injury and that the defects exposed them to forces likely to injure “a man of normal fortitude“.

3. It is not always a contest between the parties’ medical evidence. If the facts relied upon by the medical witnesses do not have a “rational relationship with the facts proved” all medical evidence ought to be rejected. This principle can be used to erode the credibility of any evidence that is based upon an inadequate history including where previous injuries have not been disclosed or where there is delayed reporting of symptoms.